EDITOR'S NOTE: Webster Township passed the ordinance that is the subject of this story 4-3. The Aug. 9 vote was taken too late for the deadline for Michigan Farm News’s print edition.
Ryan Nixon said after the vote that his only real option at this point is to gather signatures for another ballot initiative, but said it’s unrealistic to think putting the question about an agritourism ordinance will make the November ballot.
“The township controls the election,” said Nixon’s attorney Stephon Bagne. “But the key point is that the ordinance is not effective until it goes on the ballot and signatures are confirmed. If it delays in verifying the signatures (as it did for Nixon’s first signature drive), anybody who starts a barn wedding operation will become a legal nonconforming use, as determined by Judge Connors.”
Nixon said his fight now is about much more than barn weddings.
“I’m fighting for farmers in the township who need future uses like this (agritourism uses such as corn mazes) to keep the farm alive for future generations. That’s my fight.”
Now, onto the story:
Try as he might to not take it personally, it seems all too evident to Ryan Nixon that it is.
“I think it’s a personal vendetta,” he said a week before Washtenaw County’s Webster Township held a special meeting on a new seasonal agritourism zoning ordinance that would, among other things, specifically prohibit weddings in his barn and others. That meeting took place after this edition of Michigan Farm News went to press.
It was less than a year ago that Nixon’s right to conduct weddings in his family farm’s 98-year old barn was confirmed in court. And since that time, nothing the township has done has been targeted toward Nixon, according to Webster Township Planning Commission Chair Andrea Zamansky.
“Zoning is not a Nixon issue,” she said. “It isn’t directed at him. Our master plan states that commercial uses such as wedding barns are not compatible within the agricultural district. Our zoning ordinance has never allowed commercial uses as a permitted use in the agriculturally zoned district. We are mindful of our agricultural heritage and encourage farming and ag uses, but commercial uses typically don’t belong in ag zones.”
The exact language of the Webster Township master plan reads:
5.08 To help encourage small agricultural operations to remain in the township, the ordinance allows limited agri-tourism uses within the Agriculture district. These may include (but are not limited to): pumpkin patches, hay rides, corn mazes, and Christmas tree farms. Intense commercial operations such as event barns are not compatible within the Agriculture district.
The problem between the township and Nixon, however, isn’t so much about zoning, he said, but about a township which is unresponsive to the will of the people and is upset because he’s sued them to retain his rights to conduct an agritourism business in and on agriculturally-zoned property.
Nixon, who also runs a corn maze, which the ordinance would allow, said the township is trying to back-door a barrier even to that by adding a definition into the ordinance that limits activities “primarily during daylight hours” and prohibiting “restaurants or cafes,” even though he has a building adjacent to the wedding barn that serves food to guests of the corn maze and other events.
When it started
The dispute began in October of 2016, when, according to Nixon’s attorney Stephon Bagne, “Nixon received a notice demanding that he stop conducting events in his barn.
“That resulted in some proceedings before the Zoning Board of Appeals (ZBA), which upheld the prohibition. Judge Connors in Washtenaw Circuit Court overturned the ZBA and allowed seasonal event barns in Webster Township,” he said. “Shortly after that decision, the Township amended its zoning ordinance to prohibit event barns, among other things.”
After that, Nixon, having already lost income from cancelled wedding bookings ‑ without which he said he couldn’t continue to farm ‑ decided to exercise his rights, which he thought had been upheld in court.
He went door-to-door and collected more than 700 valid signatures.
“Nixon obtained enough signatures to put the issue on the ballot,” Bagne said. “By doing so, he prevented the revised ordinance from going into effect until the clerk either rejected the signatures or an election was held.
“The next step was for the Township Clerk to certify the signatures, which she did not do for some time,” Bagne said. “A neighbor filed a lawsuit claiming that Nixon’s petitions were defective.
“That neighbor,” he said, “was working closely with the township in the litigation involving the ZBA, including hiring the same lawyer who was co-signing legal papers with the township’s attorneys representing the neighbor.
“Nixon feared that this was a friendly lawsuit that the township would not defend as a way to avoid the election,” Bagne said. “Nixon intervened in the lawsuit. After Nixon intervened, the neighbor asked to dismiss the lawsuit voluntarily and the township refused to allow it. I argued that the township was trying to have the court act as the bad guy by preventing the citizens of Webster Township from voting instead of the elected officials doing that. The court rejected the township’s position and threw out the lawsuit.”
An ‘unclear petition’
Avoiding a referendum that it might lose, however, was not a factor in the decision to revise the ordinance, Zamansky said.
“The petition was not clear about what specifically people wanted to change,” she said. “And there was a good deal of confusion within the community regarding the intent and effect of the September 2017 zoning ordinance amendments regarding seasonal agri-tourism. For example, many community members inaccurately believed that the zoning ordinance amendments outlawed corn mazes, fireworks and hunting, which is not the case. So we decided to go back to basics with the current recommended language (which was the subject of the Aug. 9 public meeting) and take a fresh start and define what seasonal agritourism is and isn’t. The recommended amendments continue the township’s existing approach with respect to seasonal agritourism, while also providing maximum clarity for all concerned.”
The proposed new ordinance gets quite specific, perhaps because, when the judge ruled in favor of Nixon in 2017, he opined that the township’s agritourism definition did not fulfil the ordinances’ mandate.
Bagne had successfully argued in court that under agritourism definitions provided by the Michigan Department of Agriculture, Michigan Farm Bureau, the Michigan Agritourism Association, and dozens of other governments, universities, agricultural Extension offices, or trade organizations around the country, that the term includes weddings.
But by getting more specific and defining the conditions of ‘seasonal agri-tourism,’ the township hopes to avoid another adverse ruling.
“The court,” (when it ruled in Nixon’s favor in 2017) “found the requirement that ambiguous ordinances be interpreted in favor of the property owner compelling,” Bagne said.
The new definition of seasonal agritourism, if passed by the full township board Aug. 9, would be considerably more specific, spelling out what is allowed and what is not. The entire ordinance reads:
Seasonal Agri-tourism. Land uses and activities that are seasonal, community-oriented, open to the public, related to farming and agriculture, and operated for education and enjoyment, which entail participation, learning or involvement in the farming activities of a Farm Operation, and which meet all of the following criteria:
(i) are inherently connected with the agricultural activities and Farm Products of the Farm Operation;
(ii) take place on the premises of the Farm Operation, primarily in an outdoor setting;
(iii) are directly connected with a specific agricultural or harvest season;
(iv) primarily produce sounds and noise traditionally associated with agricultural activities;
(v) produce traffic patterns consisting primarily of passenger vehicles widely dispersed throughout the day (but not traffic patterns concentrated at the start and end of events, and not a material amount of commercial traffic for vendors, service providers or other commercial vehicles);
(vi) primarily occur during daylight hours.
“Seasonal Agri-tourism includes, for example, hay rides, sleigh rides, corn mazes, pumpkin patches, u-pick operations, and Christmas tree farms,” the proposed ordinance reads. “Seasonal Agri-tourism does not include event barns, wedding barns or other facilities that host parties, receptions or special events; restaurants or cafes; lodges, bed and breakfasts, campgrounds or other facilities hosting overnight guests; concerts, fairs or festivals; game/hunting preserves; any use or activity that would constitute a Special Use pursuant to Section 9.10.C of this Zoning Ordinance; and other activities not meeting the criteria included within the above definition of “Seasonal Agri-tourism.”
If the proposed ordinance passes, Nixon has the right to again collect at least 500 valid signatures and force another referendum in November.
Either way, he said, it won’t matter for his operation. He’s grandfathered in, he believes, a position which the township disputes.
“Our zoning order never allowed commercial uses as a permitted use in an ag zone,” Zamansky said. “An event-hosting facility typically is a commercial type of use. It tends to be more intense and produces more noise, traffic and other nuisances for the surrounding community, so our zoning ordinance never allowed that commercial type of business as a permitted use in this zoning district.”
Zamansky said a business land use such as a commercial wedding venue cannot be grandfathered unless it was initially allowed either as a special use or a permitted use.
“Special uses are things that can be compatible, but have to go through the site plan and special use approval process, and the township has the ability to add conditions to it,” she said.
Nixon pointed out that most of his neighbors, including Zamansky, signed affidavits supporting his wedding use as part of his initial submissions to the ZBA.
“Almost all my neighbors support me. Even Andrea [Zamansky] signed an affidavit, and that was before I had the weddings end earlier to avoid impacting the neighbors,” he said.
The court will decide
Despite that, the issue will soon be resolved in court, Bagne said.
“That lawsuit is still going on,” he said. “The township is appealing the (2017) court determination that whether the ordinance included it or not, under the original ordinance, Nixon is a legal nonconforming use.”
While the township spends taxpayer dollars to dispute that, Bagne produced a document dated April 20, 2015, in which the Washtenaw County Department of Public Health “approves the use of this property as a seasonal event facility…” under several conditions.
If the township argues in court that the health department has no jurisdiction over a township’s zoning rules, Bagne said that document is just one example of the township’s history of agreeing that Nixon’s use, while non-conforming, was permitted.
“The facts are that (Nixon) was operating with the knowledge of the township, which did nothing to stop the activity for years and approved building improvements knowing they would be used for weddings,” Bagne said. “The Zoning Compliance Officer at the time told him he was permitted. The Township Board received a memo from the Zoning Compliance Officer telling them that the improvements would be used for weddings.”
As this all plays out in court, Nixon continues to lose wedding business.
“It’s getting personal,” he said. “I’ve lost almost a full year’s revenue over the last two years. I have kids in college, and if I have to stop what I’m doing, I would not be able to help them or enable them to continue on the family farm. How is this township working for the majority of the people? Even though I won in court, it’s a burden over my head. Brides are still hesitant to book with me. If they call me about it, I explain all that’s happened with the township, because it’s still in court, thanks to the township’s appeals. People who want to get married don’t want to take the chance that it all might not be allowed when their wedding date comes.”
If and when the issue is resolved, there remains the issue of a township that is not responsive to the will of the people, Nixon said.
“I believe I’m grandfathered, so my fight now is for other people in the township who want to do something similar on a seasonal basis,” he said. “At the meeting after the referendum petitions were submitted, there were 100-some people in the township hall asking them to leave the definition alone. There were a few who wanted it to change, but I know that some of them are not even residents of the township. But the board passed it anyway. It seems to me they’re working on their own agenda.”
Knowing what he’s learned about the controversy, Matt Kapp, governmental relations specialist with Michigan Farm Bureau, said Webster Township’s actions are a fine example of bad government.
“The township apparently is manipulating things in order to avoid having their ordinance go to a vote of the people,” he said. “Farm Bureau’s member-written policy opposes ‘discriminatory regulations, licensing and inspection by regulatory agencies and local units of government on …agritourism operations which restrict their ability to remain competitive.’”
Farmers are using ag tourism as a way to keep their farms profitable, which keeps family farms in the family, Kapp said.
“Michigan Farm Bureau encourages townships to be open-minded with the opportunities that ag tourism can provide, not just to the farming community, but the general public. We recommend that townships proactively zone to allow ag tourism in ag zoning districts, which is the opposite of what Webster Township is doing.”
“The township’s response to the lawsuit relating to the initial ballot proposal, refusal to allow that lawsuit to be dismissed in an effort to get the judge to prevent the people from voting; and its current efforts to amend the ordinance to force the ballot proposal process to start has prevented the democratic process from happening,” he said.
“If the people of Webster Township do not want event barns, let them vote on it,” he said. “Everything being done by the township reflects a fear of implementing the will of the people, a fear of having an election.”
As for Nixon, there’s no fear. Only frustration with a perceived continuing animosity toward him and his family.
“This township wants to eliminate anything I can do on this farm,” he said. “It’s throwing me curve balls every single time and manipulating the system. I don’t think that’s right.”